When Schools Have Children Arrested for School-Related
by Pete Wright, Esq.
Question: "Schools are having children with disabilities arrested for behaviors related to their disabilities. An outburst of any kind - a child who throws down a pencil during testing, or a child with autism who pushes another child who is pushing and shoving - is met with handcuffs and juvenile detention.
"Once the child is arrested, the school claims the situation is out of their hands - there is nothing they can do. What can we do to stop this practice?"
Pete Answers: This practice is not new. Schools were having children arrested for behavior related to their disabilities long before before Public Law 94-142 was enacted in 1975.
I am fortunate because I worked in the juvenile justice system for 10 years before going to law school. I knew that juvenile court Judges and juvenile probation staff were frustrated with schools, especially with special education. Schools are always looking for ways to exclude kids who are more difficult to educate and use juvenile courts as a way to accomplish this.
Because I worked in juvenile justice, when I was licensed to practice law in 1978, I was often appointed to represent children in juvenile court.
Use the Power of the Juvenile Court
When a child with a disability is arrested for school-related behavior, this is an excellent opportunity to use the power of the juvenile court to force the school district to implement a good plan for the child - and have the Court monitor the school's progress.
In most cases, the child's IEP is junk - it is inadequate and needs to be completely revised to address this child's needs. If the IEP is not based on current data and does not include present levels of academic achievement and functional performance, the child needs to be reevaluated.
You want current information on the child's academic skills, especially reading. If the child's academic skills are significantly behind the child's peer group, you would expect the child to be frustrated at school - and to develop behavior problems.
What has the school done to address these issues? (In most cases, the answer is "nothing")
Did the IEP Team Consider "Special Factors"?
The law requires the IEP team to consider "special factors," including behavior that impedes the child's learning or the learning of other children, when they develop a child's IEP.
Did the school complete a functional behavioral assessment on the child? Did the IEP team develop a behavior intervention plan? Did the IEP team develop positive behavioral interventions and strategies to address the behavior? Did school personnel actually implement these positive behavioral interventions and strategies?
Did the school revise the child's IEP and behavior plan to address the behavior that led the school staff to have the child arrested? Did the school train the child's teachers to use positive behavior interventions, as required by law?
To learn more about IEPs for children with behavior problems, read IDEA 2004: What You Need to Know About IEPs for Children with Behavior Problems.
Educate the Probation Officer
In most cases, Juvenile Probation Officers are valuable allies. When one of my kids was arrested, I would educate the Probation Officer about the child's disability, what the child needed, and what would happen if the child did not receive the necessary services.
Subpoena the Special Ed Director
After a child is arrested, there will be an adjudicatory hearing (finding of fact, determination of guilt or innocence) or (depending on the Judge, Probation Officer, or facts of case) a dispositional hearing (figuring out what to do once Court determined it had jurisdiction.
I would subpoena the special education director to testify at the hearing.
When I put the special ed director on the stand, like any other witness, she was nervous and scared. I got permission from the Judge to label the special ed director as a "hostile witness" so I could use cross examination, rather than direct examination.
With cross, I was able to chew and chew and get lots of admissions that I could use at that time -- and later, in a due process hearing, if necessary. (I always had a court reporter transcribing the hearing.)
After I did this to a special ed director for the first time, I was in a due process hearing with her a few weeks later. During a recess, she said she had never been so scared in her life. I never had to do this with that school district again.
At that point, I realized what a great weapon this was for the kids I represented. I followed the same approach in the other jurisdictions. It worked like a charm.
Ask the Judge to Monitor the School's Progress
At the end of the Hearing, the Judge entered Orders directing school to do x, y, and z. Another hearing was scheduled in three months to see what had happened and ensure that the school followed these Orders.
In most cases, when the return date rolled around, things were in good shape. The school district rolled out the red carpet for the child because they were afraid of going back to Court and answering to the Judge.
Sometimes the case would be dismissed at that point. In other cases, I would ask for another review hearing three, four or six months later. The fact that the Court was still monitoring the child's situation helped to ensure that the school continued to do what they were supposed to do.
When a youngster came to me with trumped up school/criminal charges, I sent my standard representation letter to the special ed director, and requested the entire file. After the special ed director received my letter, he or she often forced the principal (or whoever had filed the juvenile court complaint) to contact the court and get the case dismissed, with no appearances by anyone.
Juvenile Court Staff as Your Allies
The Juvenile Court Judge and juvenile court staff can be great allies in these cases.
I often received a call from one of the clerks of court, telling me that Juvenile Court Judge Jones had appointed me to represent a youngster -- and (by the way) the Judge thinks you might need to get the school district involved in the case. The Judge would like to hear from them, on the witness stand.
Nothing further needed to be said. I knew what my charge was from the Judge.
Bottom line: When you are fed a sour lemon, think about how you can turn it into lemonade, so it leads to positive changes for the kid.
Dealing with Arrogant School Officials
In my experience, people who work in affluent school districts are far more difficult to deal with that people who work in inner city or rural school districts. As Pam says, people who work in affluent districts are subject to "organizational narcissism." School personnel in affluent districts tend to view themselves as superior to people who work in less affluent districts. This belief is often manifested as arrogance. Most Judges do not share their beliefs.